Accessing Economic and Social Rights in Uzbekistan: An Analysis of Selected Laws and Practices
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Accessing Economic and
Social Rights in Uzbekistan:
An Analysis of Selected Laws
and Practices
1Composed of 60 eminent judges and lawyers from all regions of the world,
the International Commission of Jurists promotes and protects human rights
through the Rule of Law, by using its unique legal expertise to develop and
strengthen national and international justice systems .
Established in 1952 and active on the five continents, the ICJ aims to ensure
the progressive development and effective implementation of international
human rights and international humanitarian law; secure the realization of
civil, cultural, economic, political and social rights; safeguard the separation of
powers; and guarantee the independence of the judiciary and legal profession .
® Accessing Economic and Social Rights in Uzbekistan: An Analysis of
Selected Laws and Practices
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2Accessing Economic and Social Rights in Uzbekistan: An Analysis of Selected Laws and Practices
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Chapter I. The General Framework for the Protection of
International Law and Economic, Social and Cultural Rights
in Uzbekistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
International Obligations of States in realization of ESC rights . . . . . . 9
International law and the national legal system of Uzbekistan . . . . . 10
Access to Justice for Economic, Social and Cultural Rights . . . . . . . 13
Access to justice and effective remedies for ESC rights violations in
international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Access to justice through the courts: justiciability of ESC rights
in Uzbekistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Impediments to judicial protection of ESC rights . . . . . . . . . . . . . 16
The independence of the judiciary . . . . . . . . . . . . . . . . . . . 16
Access to independent legal advice . . . . . . . . . . . . . . . . . . 17
Access to legal aid . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Length of proceedings . . . . . . . . . . . . . . . . . . . . . . . . 19
Quality of decision-making and access to court decisions . . . . . . . . 20
COVID-19 and access to justice . . . . . . . . . . . . . . . . . . . . 22
Non-discrimination and Access to ESC Rights . . . . . . . . . . . . . . 23
Non-discrimination and ESC rights in international law . . . . . . . . . . . 23
Non-discrimination and ESC rights in Uzbekistan’s national legislation
and practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Discrimination against women . . . . . . . . . . . . . . . . . . . . . . 26
Discrimination based on disability . . . . . . . . . . . . . . . . . . . . 27
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Chapter II. The Right to Adequate Housing . . . . . . . . . . . . . . 29
International law and standards . . . . . . . . . . . . . . . . . . . . . 29
National legal framework, policy and practice . . . . . . . . . . . . . . 31
Forced evictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
International law and standards . . . . . . . . . . . . . . . . . . . . 34
National legal framework and practical issues . . . . . . . . . . . . . 35
Effective Remedies and the right to adequate housing . . . . . . . . . . . 40
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Chapter III. The Right to Health . . . . . . . . . . . . . . . . . . . . 42
International law and standards . . . . . . . . . . . . . . . . . . . . . 42
National legal framework, policy and practice . . . . . . . . . . . . . . 44
3Public and Private Health . . . . . . . . . . . . . . . . . . . . . . . . 47
International legal framework . . . . . . . . . . . . . . . . . . . . . 47
National legal and practical issues . . . . . . . . . . . . . . . . . . . 48
Diseases, Pandemics and Epidemics . . . . . . . . . . . . . . . . . . . 50
Non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
International standards . . . . . . . . . . . . . . . . . . . . . . . . 54
Legal and practical issues in Uzbekistan . . . . . . . . . . . . . . . . 55
Access to justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Chapter IV. The Right to Work and Rights in the Workplace . . . . . 59
International law and standards . . . . . . . . . . . . . . . . . . . . . 59
National legal framework, policy and practice . . . . . . . . . . . . . . 61
General legal framework . . . . . . . . . . . . . . . . . . . . . . . . . 61
Non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Discrimination against women in the workplace . . . . . . . . . . . . 62
Persons with disabilities . . . . . . . . . . . . . . . . . . . . . . . . 64
Forced labour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
International law and standards . . . . . . . . . . . . . . . . . . . . 65
Child labour and forced labour in Uzbekistan . . . . . . . . . . . . . . 67
National minimum wage . . . . . . . . . . . . . . . . . . . . . . . . . 68
Informal workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Access to Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Chapter V. Conclusions and Recommendations . . . . . . . . . . . . 76
Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Recommendations in regard to the Judiciary . . . . . . . . . . . . . . . 78
Recommendations in regard to the Executive and Parliament . . . . . . . . 79
Recommendations concerning specific ESC rights . . . . . . . . . . . . . 80
4Introduction
Economic, social and cultural rights (ESC rights) like civil and political rights, are indis-
pensable for the preservation of human dignity.1 As agreed by States in Vienna in 1993,
civil and political rights and ESC rights must be treated equally, as “all human rights
are universal, indivisible and interdependent and interrelated”.2 As the UN Office of the
High Commissioner on Human Rights has explained, there is no fundamental difference
in nature between civil and political and ESC rights.3
Treaties such as the International Covenant on Economic, Social and Cultural Rights
(ICESCR) are binding on the States that are party to them and States thereby un-
dertake to implement them in good faith.4 All States parties, including the Republic of
Uzbekistan, have internationally binding obligations to protect and secure these rights,
including the rights to: healthcare; housing; food; water and sanitation; education;
work; and social security.5 Thus, these are not benefits that depend on the good will of
States, but rights that must be guaranteed by States which have undertaken to imple-
ment these international obligations.
The ICESCR is one of the principal universal treaties in this field — other treaties to which
Uzbekistan is a party 6 provide particular guarantees for the ESC rights of persons from
particular groups, including women, children and persons with disabilities.7 Under this
and other human rights treaties, States implement their international legal obligations
through their national legal systems: laws, policies and practices, on matters including
healthcare, housing, food and nutrition, education or labour.8
This report considers some aspects of Uzbekistan’s implementation of these obligations
through laws and policies as well as through access to justice and remedies for those who
allege that their ESC rights have been violated. Analysing the general legal framework for
protection of these rights, it considers in more detail particular challenges in Uzbekistan,
in respect of the right to adequate housing, the right to health, and rights in the workplace.
For rights to be effective in practice, they must not only be provided for in legislation
and policy, but also be accessible to all, on an equal basis.9 Accessibility of rights re-
quires access to information, and the dismantling of physical, administrative, economic
or cultural barriers to accessing rights, as well as access to justice and effective rem-
edies (including judicial remedies) to enforce these rights.10 The obligation to protect
1
Universal Declaration of Human Rights (UDHR), United Nations General Assembly (General Assembly resolution
217 A), 10 December 1948, article 22.
2
Vienna Declaration and Programme of Action, Adopted by the World Conference on Human Rights in Vienna on
25 June 1993, article 5.
3
OHCHR, Frequently Asked Questions on Economic, Social and Cultural Rights, Fact Sheet No. 33, https://www.ohchr.org/
Documents/Publications/FactSheet33en.pdf, p. 8.
4
Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969, article 26.
5
International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification and
accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, article 2.
6
Uzbekistan acceded to the ICESCR in 1995 (see https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/
Treaty.aspx?CountryID=189&Lang=EN).
7
International Covenant on Civil and Political Rights (acceded to by Uzbekistan on 28 September 1995); the Conven-
tion on the Elimination of Discrimination against Women (acceded by Uzbekistan on 19 July 1995); the Convention
on the Rights of the Child (acceded by Uzbekistan on 29 June 1994); the International Convention on the Elimina-
tion of All Forms of Racial Discrimination (acceded by Uzbekistan on 28 September 1995); the Convention on the
Rights of Persons with Disabilities (signed by Uzbekistan on 27 February 2009); the International Convention on the
Rights of Migrant Workers and of the Members of Their Families (not acceded to by Uzbekistan).
8
ICESCR, article 2.
9
E.g. UDHR, article 7; International Covenant on Civil and Political Rights, article 26.
10
The Right to a Remedy and Reparation for Gross Human Rights Violations, A Practitioners’ Guide Revised Edition,
2018, https://www.icj.org/the-right-to-a-remedy-and-reparation-for-gross-human-rights-violations-2018-update-
to-practitioners-guide-no-2/, pp. 65–81.
5human rights under international law therefore includes an integral duty to provide
those who claim to be victims of a violation with equal and effective access to justice
and effective remedies 11, including reparation.12
Moreover, domestic law must, to the extent possible, be interpreted and applied con-
sistently with international human rights obligations.13 When there is a conflict between
domestic law — including the Constitution, legislative enactments or administrative or-
ders — and international law, a State cannot invoke its domestic law as justification for
its failure to perform its international legal obligations.14 Indeed this approach is also
consistent with the Uzbekistan Constitution 15 which recognizes the “priority of the gen-
erally accepted norms of the international law” in its Preamble.
Accepting the position set out by the Vienna Convention on the Law of Treaties (VCLT),
as it is bound to do, in its most recent report to the UN Committee on Economic, Social
and Cultural Rights (CESCR), Uzbekistan indicated that:
“…the Uzbek Constitution proclaims the primacy of the universally recognized rules
of international law, a principle enshrined in the country’s current law on human
rights and freedoms, which formally codifies the provision that, if an international
treaty to which Uzbekistan is a party establishes rules other than those consti-
tuted by Uzbek law, the rules of the international treaty prevail in Uzbekistan.” 16
While treaties such as the ICESCR create a legal framework for ESC rights protection,
the rights are implemented by States domestically. A range of national legislation is
relevant, from labour laws, to non-discrimination law, to laws regulating healthcare and
medicine, to housing laws. Laws affecting access to courts or other dispute resolution
mechanisms, and the independence and effectiveness of those mechanisms, also need
to be considered.
The importance of national legal frameworks in implementing these international law
obligations is particularly relevant at a time of considerable legal change in Uzbeki-
stan. Uzbekistan, having made a strong break with its isolationist past, has since the
assumption of authority of the administration of President Mirziyoyev in 2016, carried
out wide-ranging reforms of its institutions, procedures, laws and policies. Extensive
revision of codes and other laws is still ongoing, including changes to the Constitution
itself.17 Many of these reforms concern subject matter relevant for the protection of
11
Ibid.
12
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Inter-
national Human Rights Law and Serious Violations of International Humanitarian Law, Adopted and proclaimed by
General Assembly resolution 60/147 of 16 December 2005, Principle 3; UN Committee on Economic, Social and
Cultural Rights (CESCR), General Comment No. 9: The domestic application of the Covenant, 3 December 1998,
E/C.12/1998/24, paras 2–3; CESCR, General Comment No. 24, State obligations under the International Cove-
nant on Economic, Social and Cultural Rights in the context of business activities, 10 August 2017, E/C.12/GC/24,
para. 39; CESCR, General Comment No. 20, Non-discrimination in economic, social and cultural rights, E/C.12/GC/20,
2 July 2009, para. 40.
13
European Commission for Democracy through Law (Venice Commission), Report on the Implementation of Inter-
national Human Rights Treaties in Domestic Law and the Role of Courts, CDL-AD(2014)036, 8 December 2014,
https://www.venice.coe.int/webformsf/documents/default.aspx?pdffile=CDL-AD(2014)036-e, para. 113.
14
Article 27 of the Vienna Convention on the Law of Treaties reads in full: “A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.” Article 46
reads: “Article 46. 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed
in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation
is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal
practice and in good faith.”
15
The Constitution of the Republic of Uzbekistan, 8 December 1992, https://lex.uz/docs/4032775.
16
Third periodic report of Uzbekistan on implementation of the Covenant on Economic, Social and Cultural Rights,
E/C.12/UZB/3, 14 August 2019, para. 46.
17
The Law of the Republic of Uzbekistan on the Introduction of Amendments and Additions to the Constitution of the
Republic of Uzbekistan, 6 April 2017, No. ZRU-426.
6ESC rights, including the education and healthcare systems, child protection and gen-
der violence, and for access to justice.
Notably, the first steps have been towards reform of the judicial system, which is cru-
cial to the protection of human rights. The reforms have, among others, led to changes
in the judicial appeals procedure, the creation of a system of judicial self-governance
under the High Judicial Council and new procedures for the selection, appointment and
tenure of judges.18
This climate of reform has also brought greater openness to engagement with interna-
tional law, standards and mechanisms for the protection of human rights. Uzbekistan
is party to some of the principal universal human rights treaties including: the Inter-
national Covenant on Economic, Social and Cultural Rights (ICESCR);the International
Covenant on Civil and Political Rights (ICCPR); the Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW); the International Convention on
the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the
Rights of the Child (CRC).19 Uzbekistan is a party to different Conventions of the Inter-
national Labour Organization (ILO), which are particularly relevant for the protection of
the right to labour and conditions of labour.20
It is a significant constraint on the effective implementation of these treaties howev-
er, that Uzbekistan has not accepted individual complaint mechanisms available under
the UN treaties relevant to ESC rights, including under the Optional Protocols to the
ICESCR, CEDAW and the CRC, or the communication mechanisms provided for under
article 14 of CERD and article 77 of the CMW.21 And while Uzbekistan is a party to the
Optional Protocol to the ICCPR, the implementation record of more than 40 decisions
remains unsatisfactory.22
One welcome development is that, in the past four years, two independent experts
(Special Procedures) of the UN Human Rights Council have visited the country: the
UN Special Rapporteur on freedom of religion or belief in 2017 23 and the UN Special
Rapporteur on the Independence of Judges and Lawyers in 2019.24 Uzbekistan had
previously not allowed for such visits since 2002, following the visit of the UN Special
Rapporteur on Torture.25 Besides, Uzbekistan has been elected for the first time as a
member of the UN Human Rights Council 26 and elaborated its first ever National Human
Rights Strategy outlining some of its key priorities in pursuing its goals in relation to
human rights in the country.27
18
The Law of the Republic of Uzbekistan on the High Judicial Council of the Republic of Uzbekistan, 6 April 2017,
No. ZRU-427.
19
United National Human Rights Treaty Body Database, Uzbekistan, https://tbinternet.ohchr.org/_layouts/15/
TreatyBodyExternal/Treaty.aspx?CountryID=189&Lang=EN.
20
International Labour Organisation: Ratifications for Uzbekistan, https://www.ilo.org/dyn/normlex/en/f?
p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:103538.
21
United National Human Rights Treaty Body Database, Uzbekistan, op. cit.
22
UN Treaty Bodies Jurisprudence, https://juris.ohchr.org/search/documents.
23
Report of the Special Rapporteur on Freedom of Religion or Belief on his mission to Uzbekistan: note / by the Sec-
retariat, https://digitallibrary.un.org/record/1481445?ln=en.
24
The Special Rapporteur on the independence of judges and lawyers, Report of the Special Rapporteur on the independ-
ence of judges and lawyers on his visit to Uzbekistan, A/HRC/44/47/Add.1, 20 April 2020, https://www.undocs.org/A/
HRC/44/47/Add.1.
25
Theo van Boven, Report of the Special Rapporteur on the Question of Torture, Mission to Uzbekistan,
E/CN.4/2003/68/Add.2, 3 February 2003.
26
Uzbekistan elected to UN Human Rights Council for the period 2021–2023, https://www.un.int/uzbekistan/news/
uzbekistan-elected-un-human-rights-council-period-2021-2023.
27
Decree of the President of the Republic of Uzbekistan on the Adoption of the National Human Rights Strategy of the
Republic of Uzbekistan, 22 June 2020, No. UP-6012, https://lex.uz/ru/docs/4872357.
7Translating this openness into real change that will lead to the protection of human
rights in practice, remains an enormous challenge. As was confirmed by the UN Special
Rapporteur on the Independence of Judges and Lawyers, it remains the case that nei-
ther the institutional independence of the judiciary, nor the independence of individual
judges, is yet adequately protected, either in law or in practice in Uzbekistan.28
Deep systemic problems of lack of independence of the judiciary and of the legal pro-
fession, lack of the culture and practice of the rule of law, and the absence of a strong
civil society, mean that extensive structural and practical reforms are needed to en-
sure that violations of human rights are prevented and that there are effective national
systems in place to protect against and redress such violations. In particular, effective
access to justice and remedies through the courts is essential.
The reforms have also brought risks to ESC rights. For example, the drive for renova-
tion of the cities and a greater speed of urbanization 29 have led to increasing number
of evictions, demolition of homes and relocations.30 While the issue per se is not a new
one for Uzbekistan,31 the large scale of the evictions is unprecedented, and the public
response to it has been notably stronger than before.32
In this context, this report aims to contribute to the discussion in Uzbekistan about how
to achieve greater protection of ESC rights, and for effective access to justice for those
whose ESC rights have been violated.
The report marks the conclusion of a three-year project, ACCESS, of the International
Commission of Jurists (ICJ), which has worked to advance civil society engagement for
the protection of ESC rights in Uzbekistan. The project, co-funded by the European Un-
ion, held discussion seminars and trainings on ESC rights, and published practitioners’
guides and training modules. The report draws on several discussions in Uzbekistan,
as well as on legal research carried out throughout the project. Thus, this report, does
not aim to provide a definitive or comprehensive assessment to the workings of the
Uzbekistan justice system or implementation of all aspect of ESC rights in Uzbekistan.
Rather, it gives a glimpse of some of the issues which are essential for ensuring access
to justice for specific ESC rights.
This report was written by Leyla Madatli, with additional research or review contributed by
Temur Shakirov, Timothy Fish, Róisín Pillay and Ian Seiderman. The ICJ is grateful to all
those who contributed to the research for the report, including national and international
experts based both in and outside of Uzbekistan who shared their valuable expertise.
Chapter 1 of the report outlines the general issues which are essential to ensure access
to justice for ESC rights in Uzbekistan. Chapter 2 is dedicated to issues related to the
right to housing, its international legal aspects and national implementation. Chapter 3
discusses issues related to the right to health while Chapter 4 describes the aspects of
the protection of the right to work internationally as well as in Uzbekistan. In Chapter 5,
the report sets out conclusions and recommendations on access to justice as well as
the measures to protect specific rights addressed in the report.
28
Special Rapporteur on the Independence of Judges and Lawyers on his visit to Uzbekistan, Preliminary Observa-
tions on the official visit to Uzbekistan, 19–25 September 2019, https://www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=25043&LangID=E.
29
Decree of the President of Uzbekistan on the Measures on Fundamental Improvement of the Processes of Urbani-
sation, 10 January 2019, No. UP-5623, https://lex.uz/ru/docs/4154824.
30
Podrobno.Uz news portal: “Urbanisation is understood differently, most often associating it with demolitions”,
15 June 2019, https://www.podrobno.uz/cat/obchestvo/urbanizatsiyu-vse-ponimayut-po-raznomu-zachastuyu-/.
31
Decision of the Plenum of the Supreme Court of the Republic of Uzbekistan on Court Practice Concerning Housing
Disputes, 14 September 2001, https://lex.uz/docs/1452369.
32
Podrobno.Uz news portal: “MP on the demolitions in Tashkent: transparent and clear rules should be developed”,
17 February 2019, https://podrobno.uz/cat/obchestvo/deputat-o-snosakh-v-tashkente-neob/.
8Chapter I. The General Framework
for the Protection of International Law
and Economic, Social and Cultural Rights
in Uzbekistan
International Obligations of States in realization
of ESC rights
Under international human rights law, in particular the ICESCR, Uzbekistan, like other
States, has an obligation to undertake a range of measures, including legislative, ad-
ministrative, budgetary, judicial and others, to realize ESC rights.33 This means that all
“branches” of government (executive, legislative and judicial) and indeed all organs of
the State or entities otherwise performing State functions have a role and responsibility
to uphold ESC rights within their respective mandates.
States’ obligations to realize ESC rights include obligations to refrain from interference
as well as to take positive measures to ensure their realization. These can be divided
into obligations to respect, protect and fulfil rights. Under their obligations to respect,
State authorities must refrain from adopting measures or engaging in conduct that vio-
lates ESC rights. Under the obligation to protect, State authorities must act to prevent
and stop the conduct of third parties, including individuals, businesses or groups, from
impairing the enjoyment of these rights.34 Obligations to fulfil rights require States to
positively facilitate or provide for their realization, including, where necessary, though
dedication of resources. Specifically, as the UN Committee on Economic, Social and
Cultural Rights (CESCR) has clarified, this last obligation requires the State to provide
access to facilities, goods and services needed to uphold ESC rights, to facilitate the
enjoyment of these rights by removing obstacles and creating conditions for such en-
joyment and to promote such rights through education and public awareness.35
States must, pursuant to their ICESCR obligations, ensure that some elements of rights
are realized immediately. Others may be subject to “progressive development”.36 States
must immediately comply with the obligation of non-discrimination in respect of each of
the Covenant rights and must ensure immediate enjoyment of at least the “minimum
core” of each of the rights guaranteed under the ICESCR.37
Pursuant to article 2(1) of the ICESCR, a State that is not able to comply immediately
with all aspects of ICESCR obligations, in particular those that are significantly depend-
ant on financial or other resources, may realize them progressively. However, what-
ever the limitations on the State’s resources, there is an obligation to “progressively
33
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), available at:
http://hrlibrary.umn.edu/instree/Maastrichtguidelines_.html.
34
CESCR, General Comment No. 24, op. cit. In relation to businesses, see further: United Nations Guiding Principles
on Business and Human Rights (2011), HR/PUB/11/04, available at: https://www.ohchr.org/documents/publica-
tions/guidingprinciplesbusinesshr_en.pdf (“UN Guiding Principles on Business and Human Rights”); and Interna-
tional Commission of Jurists, Corporate Accountability for Abuses of Economic, Social & Cultural Rights in Conflict
and Transition (2020), p. 52, available at: https://www.icj.org/wp-content/uploads/2020/02/Universal-ESCR-
accountability-guide-Publications-Reports-Thematic-report-2020-ENG.pdf.
35
International Commission of Jurists, Guide on the Enforcement and Adjudication of Economic, Social and Cultural
Rights (ESCR) in South Africa, August 2019, https://www.icj.org/the-icj-launches-guide-to-economic-social-and-
cultural-right-in-south-africa/, pp. 38–42.
36
CESCR, General Comment No. 3: The Nature of States Parties' Obligations (article 2, para. 1 of the Covenant),
14 December 1990, E/1991/23, available at: https://www.refworld.org/docid/4538838e10.html, paras 1, 2, 9–10.
37
ICESCR, article 2 (2); CESCR, General Comment No. 20, para. 7; CESCR, General Comment 3, para. 10.
9realize” 38 these rights to the “maximum” of available resources.39 The State must take
steps towards realizing these obligations to the greatest extent possible, and must
avoid any retrogressive steps decreasing existing enjoyment of ICESCR rights.
“Resources” in this context are not limited to financial resources. They include, among
other things, natural resources, human resources, technological resources, and infor-
mational resources.40 Resources encompass both existing resources and additional re-
sources that States can make newly “available”. In this regard, States are duty bound
to:41 maximize existing resources by using all resources at their disposal effectively;
and expand existing resources by enlarging the State’s pool of resources through the
support of international co-operation and assistance, as well as the “private” contribu-
tions of companies, groups and individuals.
International law and the national legal system
of Uzbekistan
Under general principles of international law and in particular according to the Vienna
Convention on the Law of Treaties to which Uzbekistan is a party 42 “[e]very treaty in
force is binding upon the parties to it and must be performed by them in good faith.”43
In accordance with the Convention, States “may not invoke the provisions of its internal
law as justification for its failure to perform a treaty”.44
The Preamble of the Uzbekistan Constitution recognizes the “priority of the generally
accepted norms of international law . . .” Furthermore, according to the Law on Interna-
tional Treaties of the Republic of Uzbekistan, “international treaties of Uzbekistan, along
with generally recognized principles and norms of international law, are an integral part
of the legal system of Uzbekistan.” 45 The Law envisages:
“International treaties of the Republic of Uzbekistan are subject to rigorous and
mandatory execution by the Republic of Uzbekistan in accordance with interna-
tional law.
In case it is necessary to enact legislation of the Republic of Uzbekistan in order to
execute an international treaty of the Republic of Uzbekistan, relevant State bod-
ies, in agreement with the Ministry of Foreign Affairs and the Ministry of Justice of
the Republic of Uzbekistan, submit proposals to enact relevant act on execution of
the norms of the international treaty of the Republic of Uzbekistan.” 46
Many Uzbekistan laws relating to ESC rights include a specific provision that if an in-
ternational treaty to which Uzbekistan is a party establishes rules other than those
38
CESCR, General Comment No. 3, para. 9.
39
Ibid., para.10.
40
International Commission of Jurists, Guide on the Enforcement and Adjudication of Economic, Social and Cultural
Rights (ESCR) in South Africa, August 2019, op. cit., p. 158–159; R. Robertson, Measuring State Compliance with
the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social, and Cultural Rights,
Human Rights Quarterly, Volume 16 (1994), p. 695.
41
I. Seiderman & T. F. Hodgson, “COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the
Right to Health (Part 2)”, Opinio Juris (1 April 2020), http://opiniojuris.org/2020/04/01/covid-19-symposium-cov-
id-19-responses-and-state-obligations-concerning-the-right-to-health-part-2/.
42
Uzbekistan acceded to the Vienna Convention on the Law of Treaties on 12 July 1995, https://treaties.un.org/Pages/
ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en.
43
Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, United Nations, Treaty Series vol. 1155, at 331
(Vienna Convention), article 26.
44
Ibid., article 27.
45
Law on International Treaties of the Republic of Uzbekistan, 6 February 2019, LRU-518, article 3.
46
Ibid., article 33.
10constituted by the domestic law, the terms of the international treaty prevail.47 In par-
ticular, the “Law on Normative Legal Acts” enshrines that “[t]he normative legal act
[i.e. ‘laws and by-laws’] applies to citizens and legal entities of the Republic of Uzbeki-
stan, as well as to foreign legal entities when they carry out activities on the territory
of the Republic of Uzbekistan, foreign citizens and stateless persons located on the
territory of the Republic of Uzbekistan, unless otherwise provided by an international
treaty of the Republic of Uzbekistan.” 48 Furthermore, the law specifies that the drafters
of the law should take into account commonly accepted principles and norms of inter-
national law.49
As regards the role of courts in implementation of international human rights law, the
Law on Courts provides that:
“A court in Uzbekistan is called upon to exercise judicial protection of citizens’
rights and freedoms provided for by the Constitution and other laws of the Re-
public of Uzbekistan, international acts on human rights, [as well as] rights and
interests of the legal entities, organizations protected by law.” 50
However, most legal practitioners and scholars in Uzbekistan with whom the ICJ dis-
cussed this, considered that in practice, courts typically restrict themselves to applying
national legislation as it is written, and desist from applying international law directly or
interpreting legislation in light of international law.
The official position on the status and application of international law in the national
legal system is ambiguous. According to the common core document forming part of
Uzbekistan’s report to the UN Treaty Bodies of 2017,51 “. . . the rights provided for by
international treaties may be directly granted to everyone, and the international obli-
gations of Uzbekistan met, solely through the application of the rules of national law.”
It further states in regard to invocation of international human rights treaties by judicial
bodies that:
“The national legal system recognizes the supremacy of the Constitution and the
precedence of international law over national legislation. An international treaty
must be incorporated into national legislation before it can be applied. Following
incorporation, the rules of international law become part of national legislation
and are binding. However, it has not become standard practice for judicial bodies
to make direct reference to specific international treaties; such practice is in fact
extremely rare.” 52
In its Concluding Observations of 2014 on Uzbekistan, following review of the report,
the CESCR has indicated that it: “regrets that, according to information provided by the
State party, domestic courts do not directly refer to the Covenant, despite their com-
petence to do so under the domestic law (article 1)”.53
47
E.g. Law on Healthcare of the Citizens of the Republic of Uzbekistan, 29 August 1996, No. 265-I, article 1; Law on
Sanitary and Epidemiological Welfare of the Population of the Republic of Uzbekistan, 26 August 2015, No. ZRU-393,
article 2; Law on Reproductive Healthcare of Citizens of the Republic of Uzbekistan, 11 March 2019, No. ZRU-528,
article 2; Housing Code of the Republic of Uzbekistan, 24 December 1998, No. 713-I, article 3.
48
Law on Normative Legal Acts of the Republic of Uzbekistan, 14 December 2000, No. 160-II, article 34.
49
Ibid., article 20.
50
Law on Courts of the Republic of Uzbekistan, 2 September 1993, No. 924-XII, article 2, https://www.lex.uz/
acts/68521.
51
Common core document forming part of the reports of States parties, Uzbekistan, HRI/CORE/UZB/2017, 20 No-
vember 2017, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=HRI/CORE/
UZB 2017, paras 267–269.
52
Ibid.
53
CESCR, Concluding Observations on the second periodic report of Uzbekistan, E/C.12/UZB/CO/2, 12 June 2014,
para. 5.
11In its most recent report to CESCR, of 2019, the Government of Uzbekistan stated its
position, at least as to how the ICESCR is given effect in the national law of Uzbekistan:
“. . . the Uzbek Constitution proclaims the primacy of the universally recognized
rules of international law, a principle enshrined in the country’s current law on hu-
man rights and freedoms, which formally codifies the provision that, if an interna-
tional treaty to which Uzbekistan is a party establishes rules other than those con-
stituted by Uzbek law, the rules of the international treaty prevail in Uzbekistan.
. . . According to the Law on Courts, the work of the courts is governed not only
by the country’s law but also by the universally recognized rules and principles of
international law and no restrictions are placed on the exercise by courts of their
right directly to apply the rules of international law in handing down their judg-
ments.” 54
In its fifth periodic report of 2019 to the UN Human Rights Committee, Uzbekistan
reiterated its position that “the Constitution and laws of the Republic of Uzbekistan
enshrine the principle of the primacy of international human rights, pursuant to which,
if national laws are inconsistent with international rules, the rules of the international
treaty prevail.” 55 However, in the State Replies of Uzbekistan to the UN Human Rights
Committee’s List of Issues, the Uzbek Government also noted the difficulties regarding
the implementation of the Views of the UN Human Rights Committee in a case concern-
ing Uzbekistan, citing limitations imposed under the domestic law.56 Following review of
that report, the UN Human Rights Committee expressed concern about Uzbekistan’s:
“. . . continuing failure to implement its Views under the Optional Protocol, in par-
ticular citing incompatibilities with national legislation, despite the fact that the
Constitution recognizes the primacy of international law over national law.” 57
Uzbekistan has also expressed its position on the courts and human rights treaties in
its sixth periodic report of 2020 to the UN Committee on the Elimination of Discrimina-
tion against Women (CEDAW Committee), the supervisory body of the Convention on
the Elimination of all Forms of Discrimination against Women. According to the report:
“the courts do not directly apply the Convention, since Article 15 of the Constitu-
tion proclaims the supremacy of the Constitution and the laws of Uzbekistan, they
are guided by national legislation, and the norms of international treaties are ap-
plied only after their implementation into national legislation.” 58
This position is contrary to the representations made to the CESCR, and points to the
lack of a unified approach by the State on the incorporation of the international law
in the national legal system. The CESCR urged Uzbekistan to ensure that the ICESCR
provisions were invoked before and applied by the domestic courts, including by raising
awareness among rights holders and the authorities responsible for its implementation.
54
Third periodic report of Uzbekistan on implementation of the International Covenant on Economic, Social and Cul-
tural Rights, E/C.12/UZB/3, 14 August 2019, paras 46–47.
55
Fifth periodic report of Uzbekistan on implementation of the International Covenant on Civil and Political Rights,
10 January 2019, CCPR/C/UZB/5, para. 44.
56
Ibid., para 4: “Comments were prepared by Uzbekistan regarding implementation of the Views of the Human Rights
Committee in the case of Karima Sabirova and Bobir Sabirov. Based on the stipulations of Uzbek law, in view of
the fact that the administrative cases brought against Ms. Sabirova and Mr. Sabirov for the commission of an ad-
ministrative offence under article 1842 of the Administrative Liability Code had been considered in 2012, it is not
possible for the judgments handed down against those persons to be reviewed, because of the six-month statute
of limitations imposed under law on appeals.”
57
UN Human Rights Committee (HRC), Concluding Observations on the fifth periodic report of Uzbekistan,
CCPR/C/UZB/CO/5, para. 4.
58
CEDAW, Replies of Uzbekistan to the list of issues in relation to its sixth periodic report on implementation of the Conven-
tion on the Elimination of All Forms of Discrimination against Women, 3 November 2020, https://tbinternet.ohchr.org/_
layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CEDAW/RLI/UZB/43648&Lang=en, para. 3.
12It referred to its General Comment No. 9 (1998) on the domestic application of the
ICESCR 59 and invited Uzbekistan to include, in its next periodic report, information on
court decisions giving effect to ICESCR rights. General Comment No. 9 says that:
“within the limits of the appropriate exercise of their functions of judicial review,
courts should take account of Covenant rights where this is necessary to ensure
that the State's conduct is consistent with its obligations under the Covenant. Ne-
glect by the courts of this responsibility is incompatible with the principle of the
rule of law, which must always be taken to include respect for international human
rights obligations.” 60
Indeed, as mentioned earlier, and as provided for by many Uzbekistan laws as well as
under international law, it is Uzbekistan’s obligation to interpret and apply its domestic
law consistently with its international human rights obligations and in case of a conflict
between domestic law and international law, it will not be able to invoke its domestic
law as justification for its failure to perform its international legal obligations.61
One potential means of strengthening the application of international law by the Uz-
bekistan courts, is the proposal in the recent National Human Rights Strategy to adopt
a decision of the Plenum of the Supreme Court on “Court practice on application of
the principles and rules of international law, as well as international treaties to which
Uzbekistan is a party”. This would aim to achieve “further enlargement of the practice
of use by courts of international human rights treaties”.62 If adopted, this could help to
encourage national courts to apply international human rights law, including obligations
under the ICESCR.
Access to Justice for Economic, Social and Cultural Rights
Access to justice and effective remedies for ESC rights violations
in international law
International law obligations to protect ESC rights engage the responsibility of all agents
and organs of the State, including the courts, and the judicial system plays an impor-
tant role in ensuring that ESC rights are realized in practice, through the availability of
effective remedies for violation of these rights. The right to an effective remedy and
reparation for the violation of any human right is a general principle of law, provided for
in numerous international human rights instruments 63 and in the UN Basic Principles on
Remedy and Reparation, adopted by the UN General Assembly in 2005.64 Everyone has
the right to an effective remedy for any violation of their human rights. Such remedies,
59
CESCR, General Comment No. 9, op. cit.
60
Ibid., para. 14.
61
Article 27, Vienna Convention on the Law of Treaties reads in full: “Internal law and observance of treaties. A party
may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without
prejudice to article 46.” Article 46 reads: “Article 46. Provisions of internal law regarding competence to conclude
treaties. 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest
if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and
in good faith.”
62
National Human Rights Strategy of the Republic of Uzbekistan, approved by the Presidential Decree of 22 June 2020,
No. UP-6012, https://lex.uz/ru/docs/4872357.
63
See The Right to a Remedy and Reparation for Gross Human Rights Violations, International Commission of Jurists
Practitioners Guide No. 2 (Revised Edition), 2018, available at: https://www.icj.org/wp-content/uploads/2018/11/
Universal-Right-to-a-Remedy-Publications-Reports-Practitioners-Guides-2018-ENG.pdf.
64
United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Hu-
manitarian Law, Resolution 60/147, 2005, available at: https://www.ohchr.org/EN/ProfessionalInterest/Pages/
RemedyAndReparation.aspx.
13to be effective, must be prompt, accessible, available before a competent, independent
and impartial authority, and lead to cessation of the violation and to reparation.65
In regard to the rights protected under the ICESCR, it has been made clear by the
CESCR 66 that: “appropriate means of redress, or remedies, must be available to any ag-
grieved individual or group, and appropriate means of ensuring governmental account-
ability must be put in place.” 67 The provision of domestic legal remedies for violations
of ESC rights is required under article 2.1 of the ICESCR, by which States parties must
take all “appropriate means” for the realization of the rights under the Covenant. While
either judicial or administrative remedies can be made available to this end, the latter
“could be rendered ineffective if they are not reinforced or complemented by judicial
remedies”.68 Remedies must be effective and expeditious, and accessible to everyone
without discrimination.69 Remedies must also be accompanied by full reparation, which
take the form of restitution, compensation, rehabilitation, satisfaction, and guarantee
of non-repetition, or a combination of these forms as appropriate.70
Avenues for redress of ESC rights violations are, in principle under the law, available in
the domestic context in Uzbekistan. Under the Constitution of the Republic of Uzbeki-
stan, everyone is guaranteed the right to access to a court for protection of his or her
rights and freedoms and has the right to lodge a complaint with a court against any
unlawful action of State bodies, officials or public associations.71
As well as judicial remedies through the court system,72 non-judicial remedies are es-
tablished under the national law, in particular through the mechanism of the Ombuds
person (Oliy Majlis Commissioner for Human Rights), who is empowered to examine
and address complaints, to lodge a complaint in the domestic courts on behalf of vic-
tims, and to lodge an application with the Constitutional Court.73
The Ombudsperson is “an official authorized to ensure parliamentary control over the
observance of legislation on human rights and freedoms by State bodies, enterprises,
institutions, organizations and officials”.74 The Ombudsperson examines and addresses
violations of human rights and freedoms on the basis of complaints or on his or her
own initiative.75 In this connection, the Ombudsperson is entitled, inter alia, to require
information or data from persons, including state authorities and officials, where it is
necessary for examination of a case, or to refer the case to the relevant authorities to
seek remedies for violations.76 Accordingly the State bodies and officials are obliged to
provide information inquired by the Ombudsperson and cooperate in this connection.77
The Ombudsperson does not examine cases which are in competence of the courts,
65
The ICJ Declaration on Access to Justice and Right to a Remedy in International Human Rights Systems, 12 Decem-
ber 2012, https://www.icj.org/wp-content/uploads/2013/02/Congress-Declaration-adoptedFINAL.pdf, principle 5.
66
CESCR, General Comment No. 9, paras 2 and 3. See also: CESCR, General Comment No. 12, UN Doc. E/C.12/1999/5
(1999), paras 32–35; CESCR, General Comment No. 14, UN Doc. E/C.12/2000/4 (2000), paras 59–62; CESCR,
General Comment No. 15, UN Doc. E/C.12/2002/11 (2002), paras 55–59; CESCR, General Comment No. 18,
E/C.12/GC/18 (2006), paras 48–51; and General Comment No. 19, UN Doc. E/C.12/GC/19 (2008), paras 77–81.
67
CESCR, General Comment No. 9, para. 2.
68
Ibid., paras 2 and 3. See also: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims
of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,
Principle 2. See also: General Comment No. 24, para. 39.
69
CESCR, General Comment No. 20, para. 4.
70
CESCR, General Comment No. 24, para. 41.
71
The Constitution of the Republic of Uzbekistan, article 44.
72
Ibid., article 107.
73
Law on Ombudsperson of the Oliy Majlis For Human Rights, 27 August 2004, No. 669-II, article 20, https://lex.uz/
docs/276155#276426; website of the Ombudsperson, http://ombudsman.uz/en/.
74
Ibid., article 1.
75
Ibid., article 12.
76
Ibid., article 14.
77
Ibid., article 15.
14and must inform the applicant about the outcome of the examination of a complaint,
and submit its finding to the relevant state authority or official, with a recommendation
concerning how to redress any violation of human rights found to have occurred in the
case.78 The officials receiving the finding of the Ombudsperson must examine it and
provide a reasoned reply within a month.79
Access to justice through the courts: justiciability of ESC rights in Uzbekistan
The Preamble to Uzbekistan’s Constitution affirms the “ideal” of “social justice” as one
of its core values 80 and it further enshrines that “the State shall function on the princi-
ples of social justice and legality in the interests of well-being of the people and socie-
ty”.81 In addition, the Constitution includes specific protections for particular ESC rights
including the rights to work,82 social security,83 health 84 and education.85 Some ESC
rights such as the rights to housing, food, water and sanitation are not explicitly provid-
ed for in the Constitution. However, the Constitution entrenches protections of various
rights related to ESC rights protection, such as human dignity,86 life,87 inviolability of
the home 88 and property.89 Under the national legislation, everyone is guaranteed the
right to seek judicial protection of their rights and freedoms, and shall have the right to
lodge a complaint with the court against any unlawful action of State bodies, officials
and public associations.90 It provides that no one can be deprived of or limited in their
rights, except on the basis of a court order.91
According to the Law on Courts,
“A court in Uzbekistan is a guarantee of enforcement of сitizens’ rights and free-
doms provided for by the Constitution and other laws of Uzbekistan Republic, the
international covenants on human rights, as well as rights and interests of the
legal entities, organizations protected under the law.” 92
Accordingly, ESC rights are in principle justiciable under national law. Many aspects
of the rights to housing, work and health that are the focus of this report are already
provided for in detail in domestic laws, therefore, in law their potential for justiciability
does not raise serious questions. However, in practice difficulties arise with invoking
obligations of the State to guarantee ESC rights, relying on constitutional provisions, as
well as international law.
In practice, there often exists a lack of perception of ESC rights as human rights or
justiciable rights, but as unalterable legal or social facts and natural guarantees by the
State; accordingly, in many cases problems of accessing ESC rights would not be con-
sidered as violations of rights, still less as violations which can be remedied through the
78
Ibid., article 10.
79
Ibid., article 16.
80
The Constitution of the Republic of Uzbekistan.
81
Ibid., article 14.
82
Ibid., articles 37–38.
83
Ibid., article 39.
84
Ibid., article 40.
85
Ibid., article 41.
86
Ibid., article 13.
87
Ibid., article 24.
88
Ibid., article 27.
89
Ibid., article 36.
90
Ibid., article 44.
91
Ibid., article 19.
92
Law on Courts of the Republic of Uzbekistan, op. cit., article 4.
15justice system.93 This applies, for instance, to the possibility for a person to challenge
the provisions of the law itself, claiming its incompatibility with the general provisions
of the Constitution or obligations to protect rights under international law for example,
challenging the sub-standard amount of minimum wage.
Impediments to judicial protection of ESC rights
The independence of the judiciary
A basic tenet of the rule of law is that courts established to administer justice must be
competent, independent and impartial, including, necessarily, as relates to the protec-
tion of human rights.94 Judicial independence requires the institutional independence of
the judiciary, both in law and in practice, as well as to the independence of individual
judges who enjoy personal independence in their decision making. Both of these are
necessary elements of the right to a fair hearing in civil and criminal cases.95
Independence and impartiality of a court or other tribunal requires, in particular, that
adequate safeguards are put in in place to secure such independence relating, amongst
other things, to: the procedure for the appointment of judges; the guarantees relating
to their security of tenure once appointed; the conditions governing the promotion,
transfer, suspension and cessation of their functions; and the independence of the judi-
ciary in practice from undue interference by the executive and the legislature or other
powerful actors.96
The independence of the judiciary is established by law in Uzbekistan. In particular, the
Constitution enshrines both the principle of separation of powers 97 and the independ-
ence of the judiciary from the legislative and executive authorities, political parties and
other public associations.98 It also provides that:
• in the exercise of their functions, judges are independent and only subject to law;
• any interference with their activities is not permitted and is punishable by law; and
• judges can only be removed from office before the completion of their terms in the
cases provided by law.99
According to the Law on Courts, the “independence of judges is ensured” by: (a) Stat-
utory procedures for election, appointment and termination of office of the judges;
(b) judges’ inviolability; (c) Strict procedures for the administration of justice; (d) Se-
crecy of the judges’ deliberations before the delivery of a judgment and restraint of dis-
closure of the respective confidential information; (e) Liability for contempt of court or
interfering with judicial proceedings, or violation of judicial immunity; (f) An adequate
level of material and social security provided to judges by the State commensurate with
their high status.100
93
ICJ research mission to Uzbekistan on access to justice for economic, social and cultural rights, 2018,
https://www.icj.org/uzbekistan-icj-research-mission-on-access-to-justice-for-economic-social-and-cultural-
rights/; https://www.icj.org/country/europe/uzbekistan/.
94
E.g. The Basic Principles on the Independence of the Judiciary, Principles 1 and 2; International Commission of Ju-
rists, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors, ICJ Prac-
titioners’ Guide No. 1 (2007), https://www.icj.org/wp-content/uploads/2012/04/International-Principles-on-the-In-
dependence-and-Accountability-of-Judges-Lawyers-and-Procecutors-No.1-Practitioners-Guide-2009-Eng.pdf.
95
E.g. International Commission of Jurists, International Principles on the Independence and Accountability of Judges,
Lawyers and Prosecutors, op. cit., pp. 21–27.
96
HRC, General Comment No. 32, article 14, Right to equality before courts and tribunals and to fair trial, 23 August
2007, CCPR/C/GC/32, available at: https://www.refworld.org/docid/478b2b2f2.html, para. 19.
97
The Constitution of the Republic of Uzbekistan, article 11.
98
Ibid., article 106.
99
Ibid., article 112.
100
Law on Courts of the Republic of Uzbekistan, op. cit., article 67; the Civil Procedure Code of the Republic of Uzbek-
istan, 22 January 2018, No. ZRU-460, article 9.
16Yet, following his recent visit to Uzbekistan, the UN Special Rapporteur on the Inde-
pendence of Judges and Lawyers highlighted that “the judiciary cannot be regarded at
present as being independent from other State authorities” 101 and that “[m]uch more
needs to be done to ensure that the judiciary is truly independent from other branches
of the State, in particular the executive branch, and that judges, prosecutors and law-
yers are free to carry out their professional activities without any undue interference
or pressure.” 102
Other UN authorities have expressed similar concern about the lack of independence of
the judiciary in Uzbekistan, which refers to the appointment, tenure and disciplinary re-
sponsibility of judges in particular.103 In 2020, the UN Human Rights Committee, which
supervises States’ performance under the ICCPR recommended that Uzbekistan
“[e]radicate all forms of undue interference with the judiciary by the legislative
and executive branches and guarantee the independence of the Supreme Judicial
Council, including by ensuring that it is comprised mostly of judges and prosecu-
tors elected by professional self-governing bodies and that it operates with trans-
parency.” 104
Thus, despite these guarantees, judicial independence has not been achieved in prac-
tice in Uzbekistan. The lack of independence of the judiciary puts in doubt the effective-
ness of the Uzbekistan court system, in ensuring protection of human rights, including
ESC rights, and providing remedies for their violation.
Access to independent legal advice
Effective access to justice also depends on an independent and well-qualified legal
profession. In Uzbekistan, the organization and functioning of the legal profession is
regulated by the Law on Lawyers 105 and the Law on Guarantees of Defence Lawyers’
Activities and Social Protection of Defence Lawyers.106 According to the Law, the Chair
of the Chamber of Lawyers is elected by the Conference of the Chamber Lawyers upon
the nomination by the Ministry of Justice.107 Premature termination of the powers of the
Chair of the Chamber of Lawyers is also carried out by the same Conference upon a
motion by the Ministry of Justice.108
The Ministry of Justice issues licences to practice the legal profession 109 and takes a
joint decision together with the Chamber of Lawyers in appointing members of the
Qualification Commissions.110 The mandate and rules on functioning of the Qualification
Commissions of the Chamber of Lawyers are also established by the Ministry of Justice
in agreement with the Chamber of Lawyers. This interference by the Ministry of Justice
effectively makes the Chamber of Lawyers dependent on the executive.
101
The Special Rapporteur on the independence of judges and lawyers, Report of the Special Rapporteur on the inde-
pendence of judges and lawyers on his visit to Uzbekistan, op. cit., para. 90.
102
Ibid., para. 91.
103
Ibid., para. 25.
104
HRC, Concluding Observations on the fifth periodic report of Uzbekistan, CCPR/C/UZB/CO/5, para. 39.: The UN Hu-
man Rights Committee said that the lack of independence of the judiciary in Uzbekistan was, in particular owing to:
(a) the involvement of political bodies and the President in the selection and appointment of judges and prosecutors
and in the appointment and dismissal of the Prosecutor General; (b) the lack of clear and objective criteria defined
by law for the selection of candidates for judges and prosecutors and transparent evaluation procedures; (c) and
regulations and procedures relating to disciplinary liability of prosecutors on broadly defined grounds.
105
Law on Lawyers of the Republic of Uzbekistan, 27 December 1996, No. 349-I.
106
Law on Guarantees of Defence Lawyers’ Activities and Social Protection of Defence Lawyers, 25 December 1998,
No. 721-I.
107
Law on Lawyers, op. cit., article 12.
108
Ibid, article 12.
109
Ibid., article 3.
110
Ibid., article 13.
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